Fisher v NSW Police

[2002] NSWADT 267

CITATION:	Fisher -v- Commissioner of Police, New South Wales Police Service and Anor [2002] NSWADT 267
DIVISION:	General Division
PARTIES:	APPLICANT Gregory Fisher FIRST RESPONDENT Commissioner of Police, New South Wales Police Service SECOND RESPONDENT Minister administering the Freedom of Information Act (the Premier)
FILE NUMBER:	023020
HEARING DATES:	15/05/2002
SUBMISSIONS CLOSED:	05/27/2002
DATE OF DECISION:	12/17/2002
BEFORE:	Britton A - Judicial Member
APPLICATION:	access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - law enforcement & public safety
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	BY v Director General, Attorney General's Department [2002] NSWADT 79 Re McKenzie v Dept of Social Security (1986) 65 ALR 645 Re Gold and Australian Federal Police (1994) 37 ALD 168 Taylor v Chief Inspector, RSPCA [1999] NSWADT 23 Cain v Glass (No 2) (1985) 3 NSWLR 230 Attorney-General v Smith (1996) 86 A Crim R 308 George v Rockett and Anor (1990) 170 CLR 104 Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSW ADT 93 Rittau v Commissioner of Police [2000] NSWADT 186 Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11
REPRESENTATION:	APPLICANT M Einfeld QC and C Waterstreet, barristers RESPONDENT D Paterson, solicitor
ORDERS:	1. Decision under review is affirmed.

1 These proceedings concern an application made under the Freedom of Information Act 1989 ("the Act") seeking review of a decision made by a delegate of the Commissioner of Police, New South Wales Police Service ("the Commissioner"). In that decision the Commissioner’s delegate refused to grant access to a number of documents requested by the applicant, Mr Fisher.

2 By decision dated 18 October 2001 ("the original decision"), the Commissioner’s delegate released some documents and refused to release part or whole of the following three documents:

Police radio log, page 54, relating to the call concerning Mr Fisher (released in part);
The relevant "000" tape;
The relevant "Computerised Incident Despatch Systems" ("CIDS") entry (released with informant’s name deleted).

3 The Commissioner’s delegate determined that these documents were exempt under clause 4(1)(b) of Schedule 1 of the Act. The applicant sought internal review of that decision. By decision dated 20 December 2001, the original decision was affirmed.

4 The Tribunal has jurisdiction to review the decision made by the Commissioner’s delegate to refuse access to a document or part of a document under s 53 of the Act and s 38 of the Administrative Decisions Tribunal Act 1997 ("Tribunal Act").

Background

5 The catalyst for Mr Fisher’s request for documents is an incident, which occurred on 15 August 2001. Shortly after 5.30 pm on that day, police spoke to Mr Fisher at the Oxford Hotel in Surry Hills concerning an alleged fraud matter. He was not arrested. The police had spoken to Mr Fisher in response to a radio broadcast to the effect that he was wanted for questioning in relation to a fraud offence. This allegation had been made by a member of the public ("the informant") by means of a 000 telephone call. A notation on the Police Computerised Incident Despatch System (CIDS) for that day stated: " Inft [informant] state that a person by the name of Greg Fisher is wanted in relation to numerous fraud related offences."

6 Subsequently Mr Fisher made a Freedom of Information request, the essence of which was to seek material, which would identify the person who had made the allegation against him.

Section 57

7 The respondent claims that Documents 1, 2 and 3 come within the law enforcement exemption in Schedule 1 to the FOI Act, specifically clause 4(1)(b). Clause 4 falls within Part 1 of Schedule 1 of the Act. Part 1 covers restricted documents.

8 Section 57 of the Act deals with restricted documents and provides:

(1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate.
(2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of:
(a) the public, and
(b) the review applicant, and
(c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant's representative.
(3) If the Tribunal is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it.
(4) If, after considering any document produced before it, the Tribunal is still not satisfied that there are reasonable grounds for the claim, the Tribunal is to reject the claim when determining the review application.
(5) The Tribunal is not to reject the claim unless it has given the Minister administering this Act a reasonable opportunity to appear and be heard in relation to the matter.
(6) For the purposes of any proceedings under this section, the Minister administering this Act is a party to the proceedings.

9 On the day of hearing President O’Connor DCJ handed down a decision which examined a number of live issues concerning the application of s 57: BY v Director General, Attorney General's Department [2002] NSWADT 79. His Honour determined that s 57 applies to any application for review that seeks review of an agency claim that a document is a restricted document (save for those determinations where a Ministerial certificate has been issued pursuant to s 59 to which ss 58A, B and C are applicable). He also decided that, pursuant to s 57(6), the Administering Minister is entitled to participate as a party in respect of the review of such a claim. Finally, he determined that if the Tribunal finds that there are reasonable grounds for the claim, its jurisdiction remains unaffected. It may go on to ascertain whether the decision to claim the exemption is the correct and preferable decision.

10 In these proceedings, the Premier was notified of and participated in the inquiry. The Premier’s representative made written submissions on the three issues addressed by the President in BY v Director General, Attorney General's Department. These issues were the status of the Premier as a party to proceedings under s 57; the scope of a s 57 review and the Tribunal’s discretion under s 25 of the Act. No submissions were made on the substantive issue raised by the application.

11 At that hearing, I deferred determining whether the Premier should be joined as a party until I had an opportunity to examine BY v Director General, Attorney General's Department. I have considered the reasons for that decision and see no reason to depart from President O’Connor’s conclusion that, on the proper construction of s 57, the Premier is entitled to participate as a party in any review under that section. Accordingly, the Premier is so joined.

12 Whether the Premier’s further submission needs to be considered depends on the substantive matter.

Relevant legislation

13 Section 16 of the Act gives a person the right to apply for access to an agency's documents in accordance with the Act. The agency must determine whether or not the person will be granted the access sought. It may do so only on grounds specified in the Act. Section 61 of the Act places the onus of proving that a determination to refuse access to documents is justified on the agency, which makes that determination.

14 Section 25(1) of the Act allows an agency to refuse access to an exempt document. An exempt document is defined in s 4 to include a document referred to in Schedule 1. The agency is not bound to refuse access if a document is exempt. The objects of the Act make it clear that the rights of the public to obtain access to government records, and to correct records held about them, are to be extended as far as is reasonably possible. (See s 5).

15 As noted, the Commissioner’s delegate relied on the exemption in Clause 4(1)(b) of Schedule 1 which states:

(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:
(b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained.

16 Section 25(4) of the Act requires an agency to provide access to an exempt document if it is practicable to give access to the document with the exempt material deleted. That sub-section states that:

(4) An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate):
(a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and
(b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy.

17 The questions to be determined are:

Are there reasonable grounds for the Commissioner’s claim that each of the documents are restricted documents i.e. fall within Schedule 1, cl 4 (1) (b) of the Act?
If so, is the Tribunal satisfied on balance that each the documents fall within Schedule 1, cl 4 (1)(b) of the Act?
Does s 25(1) operate to confer upon the Tribunal discretion to release a restricted document?
If yes, do the circumstances of this case warrant the exercise of this discretion?

18 Inspector Robert Koopman, who made the original decision acting as the Commissioner’s delegate, gave evidence in these proceedings. He said he had not asked the relevant officers who dealt with the informant, whether s/he had asked that their identity not be disclosed nor, did he have any other information, which would indicate that the information was provided on a confidential basis. He said he first attempted to contact the informant on the day he swore an affidavit in these proceedings, but was unable to locate the informant. In cross-examination, he conceded that he had not listened to the recording of the 000 telephone call by the applicant to the police to which the applicant seeks access. Nor had a transcript been made of that tape.

19 Mr Koopman said he reached the conclusion that the documents in dispute fell within the scope of cl. 4(1)(b) on the basis that in his view any person who provided information to police was prima facie entitled to expect that that communication would be confidential.

20 He said that in making the original decision, he had formed the view that the informant was "genuinely motivated". In cross-examination, he agreed that the exempt documents contained no information, which would assist in understanding the informant’s motivation for contacting the police. He said he had no information on which to conclude that the informant was vexatious or motivated by malice but nor did he have any basis to conclude otherwise.

Submissions

21 Mr Einfield QC submits for the applicant that there is no reasonable basis for concluding that the documents in question related to the enforcement or administration of law or were provided on a confidential basis. The evidence establishes that the information provided by the informant was false as at the relevant time the applicant was not wanted by police. The applicant was already before the courts and serious restrictions, which he had met, had been placed on his civil liberties.

22 Mr Einfield concedes that where contact is made with the police about a breach or suspected breach of the law, it is reasonable to infer that that information was provided on a confidential basis. But here, the information did not and could not reasonably be said to relate to a breach of the law. In this case, as the respondent concedes, there is no direct evidence that confidentiality was discussed, nor, argues Mr Einfield, is there any basis on which such a conclusion could have been reasonably drawn.

23 It was further submitted for the applicant that the common law and FOI protections for informers grew out of a need to encourage the flow of confidential criminal intelligence concerning actual or planned crimes. At common law, the prerequisites for this protection were the existence of a planned or attempted crime and an express or implied expectation of confidentiality. Mr Einfeld submits that, in this case, there was no crime to be investigated as there was no actual crime or planned crime on foot. Further, there is no evidence from which an implication of confidentiality arises.

24 Finally, Mr Einfeld argues that the general rule does not protect malicious, vexatious, improperly motivated, prejudiced or recklessly defamatory denunciations of persons by informers. He argues that, in this case, the "information" supplied to the police was obviously wrong, was defamatory and that there is a powerful inference to be drawn that it was scurrilous and improperly motivated.

25 Ms Patterson, for the respondent contends that there is a powerful public interest in protecting the identities of informers and that this has been given concrete form in the statutory protection provided by cl 4(1). She argues that what is in issue is not the subject matter or content of the information obtained by police and law enforcement authorities. Rather, it is the general public interest in protecting the identities of informers and the confidentiality of the communications between law enforcement agencies and informers.

26 In relation to the question of confidentiality, Ms Patterson for the Commissioner argues that it is generally to be expected that communications between informers and police are confidential. There will, in general terms, be an expectation that both the fact that information has been given and the identity of the informer will be kept confidential. This is so even when the information turns out to be inaccurate or mistaken: Re McKenzie v Dept of Social Security (1986) 65 ALR 645. (See also Re Gold and Australian Federal Police (1994) 37 ALD 168.) It has been said that the presumption of confidentiality in relation to such communications will not be lightly set aside: Taylor v Chief Inspector, RSPCA [1999] NSWADT 23.

Findings and Conclusions-s 57 review

27 In submissions the applicant raises the interesting issue of balancing the public interest in protecting the flow of information to law enforcement agencies; the public interest in deterring false or misleading information being given to law enforcement authorities, and the private interests of citizens in protecting their privacy and deterring others from falsely defaming them.

28 Much of the intelligence obtained by police from informers is handed over by persons involved in the criminal milieu who would be likely to suffer grievous consequences if it became known that they were supplying information to police. Vengeance could often be swift and deadly for uncovered informers. As a matter of public interest, law enforcement authorities and courts have struck a balance in favour of hiding the identities of informers in order to facilitate the detection and punishment of serious crimes.

29 At common law the protection of informers has been given almost absolute status. In Cain v Glass (No 2) (1985) 3 NSWLR 230 at 247-248 McHugh JA (as he then was) said:

The justification for the exalted position of the informer rule in the spectrum of public interest immunity is that, unless the anonymity of informers is protected 'the flow of intelligence about planned crime or its perpetrators' will stop: D v National Society for the Prevention of Cruelty to Children (at 232) per Lord Simon of Glaisdale. Although the need to protect the safety of informers may have played a part in creating the principle, the existence of a threat to the informer is not a condition precedent to its operation. The paramount position of the informer rule produces the result in civil proceedings that the identity of an informer in a criminal case is not admissible in any circumstances ... The rule is absolute and is relaxed only "Where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence."

30 In Attorney-General v Smith (1996) 86 A Crim R 308 at 311-312 the combined Courts of Appeal and Criminal Appeal said:

There is powerful authority for the proposition that, at common law, when a claim of immunity is made in respect of the identity of a police informer, the court before whom the claim is made does not undertake for itself, afresh, a balancing exercise, weighing one exercise against another. The balance has already been struck; it falls on the side of non-disclosure except as where, at a criminal trial, disclosure could help show that the accused is not guilty: see D v National Society for the prevention of Cruelty to Children and Cain v Glass (No. 2) ... Section 130 of the Evidence (Consequential and Other Provisions) Act 1995... appears now to require a weighing of competing interests. Even so, at the very least, the Attorney-General is entitled to rely upon the high importance which this aspect of the law of public interest immunity attaches to the protection of the identities of police informers, and the generally accepted reason for that importance.

31 It will be seen that, in Attorney-General v Smith, a rule which had previously been considered virtually absolute was given some flexibility. However, in my opinion, it was only slight, so great is the public interest in ensuring the integrity and freedom of the flow of information to police.

32 In this case it is not clear, despite what is advanced by Mr Einfeld, that the information given was motivated by malice. On his own concession, the applicant is before the court in relation to criminal matters. While he was on bail at the time the call was made to police, one may reasonably infer that the offence alleged against him was serious since he had been required to surrender his passport. It may be inferred that the informer in this matter had some knowledge of the case or allegations made against the applicant. While the inference is available that the informer was acting mala fides, it is not a necessary implication from the circumstances. It may have been that that informer held the honest but unreasonable belief that the applicant was on the run from the police. It is impossible to determine that issue without examining him/her

33 If it were demonstrated that an informer had knowingly or recklessly falsely implicated another in a serious crime, it may be arguable that the balance of interests ought to be struck in favour of the individual rather than the state. That is a question that seems to me to have been opened up by Attorney-General v Smith. Whether that is so or not is a question I do not have to resolve in this case for the reasons I have already given.

34 It seems to me to be a matter of commonsense, as well as consistent with the weight of authority, that unless there is clear evidence to the contrary, information given by informers to police must be presumed to have been given on a confidential basis. Evidence that might tend to contradict that presumption would be, for example, where a witness statement has been given to police along with an undertaking to give evidence. In other words, where an informer is willing to identify him or herself publicly as the accuser of another or is willing to give some evidence which would inevitably be given in a public trial or hearing without a claim of confidentiality. Otherwise, however, it seems to me that it is reasonable to presume that communications between police and informers are confidential. I include in this category, communications between police and informers over the 000 line or services such as Crimestoppers.

35 Accordingly, I find that reasonable grounds exist for the respondent’s claim that the documents relate to confidential information provided in relation to the enforcement or administration of the law. ( It is to be noted that it is not in issue that the release of the documents would disclose the identity of the informant.) As such I find that reasonable grounds exist for the respondent’s claim that the documents are restricted documents as defined by Schedule 1, cl 4(1)(b) of the Act.

Merits review

37 It is submitted for the Premier that once the Tribunal finds that ‘reasonable grounds’ exist for the respondent’s claim the Tribunal’s inquiry is complete. It has no power to proceed to conduct a merits review. This argument was considered at length and rejected in BY v Director General, Attorney General's Department. As noted, the President in that decision took the view that s 57 does not act as a jurisdictional bar. Rather, once a finding is made that ‘reasonable grounds’ exist, the Tribunal may go on to ascertain whether the decision to claim the exemption is the correct and preferable decision.

38 In supplementary submissions the Premier’s representative acknowledged that the weight of authority is now against the proposition that s 57 operates to limit the jurisdiction of the Tribunal but submitts, in effect, that that BY v Director General, Attorney General's Department was wrongly decided. As a matter of law I am not bound to follow BY. However having carefully examined that decision I adopt the President’s reasons concerning the scope of the Tribunal’s jurisdiction in respect of restricted documents.

39 In the circumstances of this case what then are the practical implications of adopting that approach? First it means that it is not enough that the Tribunal be merely satisfied that ‘reasonable grounds’ exist for the respondent’s claim. In George v Rockett and Anor ((1990) 170 CLR 104 at 116) Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ explained the distinction between reasonable grounds to believe and establishment on the balance of probabilities adding that:

. . . the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

40 Accordingly once the Tribunal steps into the shoes of the administrator the test to be applied in respect of the character of the documents becomes more onerous. It is not enough that the Tribunal be satisfied that reasonable grounds exist for the respondent’s claim, the Tribunal must itself be satisfied on balance that the relevant documents are restricted. The burden of establishing that fact lies with the respondent.

41 Second, if the Tribunal is so satisfied it must consider whether each of the documents should be released under s 25(4) of the Act with the exempt matter deleted. Finally the Tribunal must determine whether an exercise of its discretion under s 25(1) of the Act to release any of the documents is warranted.

42 In the circumstances of this case, I am satisfied that it is more likely than not that the communication made by the caller, whose identity is sought by the applicant, was made in the expectation that the information was being provided on a confidential basis. Further I am satisfied not only that reasonable grounds exist for the respondent’s claim but on balance that in respect of each of the documents, the necessary elements of Schedule 1, cl 4(1)(b) have been made out. That is, each contain material provided on a confidential basis, in relation to the enforcement and administration of the law, the disclosure of which would enable the identity of the informant to be ascertained.

43 I turn now to consider whether there is scope to release any or all of the documents under s 25(4) with the exempt matter deleted. In respect of the police radio log and the CIDS entry both documents have already been released to the applicant with the exempt matter deleted. In respect of the 000 tape it is apparent that it would not be practicable to dissect from that document the exempt matter. Any or all part of the recording may enable the informant to be identified. Accordingly there is no scope in respect of any of the documents to release them under s 25(4).

Override Discretion

42 In Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSW ADT 93 the Tribunal held that it had power pursuant to s 63 of the Tribunal Act to review the decision of an agency to refuse to grant access to an exempt document. That decision was followed in Rittau v Commissioner of Police [2000] NSWADT 186, Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11 and other cases. It was submitted for the Premier that the Tribunal does not enjoy the so-called "public interest" override. The Premier maintains that Mangoplah v Great Southern Energy was wrongly decided. However he urges the Tribunal, if it is to follow that decision, to adopt the cautions approach to the exercise of the public interest override endorsed by the President in BY v Director General, Attorney General's Department [at 80].

43 In my view this is not the case to decide whether a departure from the Mangoplah line of authority is warranted in respect of restricted documents, as I am not persuaded that any special or exceptional circumstances have been identified that warrant the exercise of discretion in favour of disclosure in respect of any of the documents sought.

44 For these reasons I affirm the original decision.

[Editorial note: Since these reasons were finalised the President has rejected the reasoning in Mangoplah and held that there is no such discretion available to the Tribunal: see Neary v The Treasurer, New South Wales [2002] NSWADT 261 (13 December 2002)]